Insite ruling could swing Canada’s anti-prostitution laws

TORONTO — Canadian courts could strike down the country’s anti-prostitution laws if judges follow the logic of a landmark Supreme Court ruling on drug policy that came out last week.

Experts say the unanimous decision preventing the closure of North America’s only safe-injection site for drug addicts has implications for a challenge to Canadian adult prostitution laws that is working its way through the courts.

The court said closing the Insite clinic violated addicts’ basic rights to life and security, given evidence that the clinic reduced the risks from drug addiction.

“I think it’s going to be cited in many, many cases,” said Errol Mendes, law professor at the University of Ottawa. He said the ruling’s logic can apply in a prostitution case that is likely to end up at the Supreme Court.

Prostitution itself is not illegal in Canada, but most related activities, such as advertising services or living off the proceeds of prostitution, are against the law.

The recent case, brought by a dominatrix and other sex workers, argues that these laws put sex workers in danger. Judge Susan Himel agreed in a ruling that struck down the laws, noting, for example, that the laws make it illegal for sex workers to hire body guards.

Ontario’s Court of Appeal is expected to rule on the case soon. If it and then the Supreme Court uphold Himel’s decision, the federal government will have to find another way to restrict prostitution, or perhaps accept legalized brothels of the sort found in Nevada.

FUNDAMENTAL JUSTICE

Both Himel’s ruling and the Insite ruling found government actions did not meet the “principles of fundamental justice” that underpin Canadian legislation.

Carissima Mathen, a law professor at the University of New Brunswick, said Himel’s ruling seemed bold at the time, but the Insite decision “suggests that it may not be such an outlier.”

A lawyer in the prostitution case agreed that the Insite case was significant for his challenge.

“I think this case strongly supports what we set out to achieve,” Alan Young said. “But obviously the Court of Appeal will read the case how they see fit and perhaps they will see a different interpretation.”

Both the federal and Ontario provincial governments said it would be inappropriate to comment on a matter currently before the courts.

Canada’s Supreme Court is less politicized than the U.S. court, and few lawyers expect that to change even after Conservative Prime Minister Stephen Harper names two new judges, probably within months.

Experts said the Insite decision showed that the government could not ignore scientific evidence to push a legal agenda that opposes drug use or prostitution.

Significantly, the Supreme Court did not examine whether the trial judge was right to conclude that Insite saved lives, focusing on how the government had to react to that evidence.

This might make it easier for the Ontario court to dismiss requests from government lawyers to reexamine the facts of the the prostitution case, said Hamish Stewart, a law professor at the University of Toronto.

INTERPRETING INSITE

Appeal courts tend to defer to trial judges on the basic facts of a case. But those facts usually come down to who did what and when, rather than research about costs and benefits.

Cases like the prostitution one will determine how widely the Insite ruling can apply. The Insite text zeroes in on Insite’s neighbourhood, Vancouver’s Downtown Eastside, probably Canada’s most deprived urban area.

“Addicts share needles, inject hurriedly in alleyways and dissolve heroin in dirty puddle water before injecting it into their veins. In these back alleyways, users who overdose are often alone and far from medical help,” said the ruling.

Young said the government may argue that Insite’s precedents apply only to the Downtown Eastside, but his case is also grounded in that neighbourhood.

The debate over prostitution law in Canada is haunted by the specter of Robert Pickton, who was convicted of six murders but charged with many others. Many of more than 60 missing women were sex workers from the Downtown Eastside.

The Supreme Court case is Attorney General of Canada et al. v. PHS Community Services Society, et al. No. 33556 and the Court of Appeal for Ontario case is Bedford, Terri et al v. The Attorney General of Canada, Nos. C52799 and C52814.